HIDALGO and STARR COUNTIES, Texas (KXAN) – Less than a quarter of the “high-threat criminals” arrested for felony drug offenses made by Texas Department of Public Safety troopers in two key counties during the state’s border surge have been sent to prison, a KXAN Investigation found.

To gauge how these “high-threat criminal” arrests are being prosecuted, KXAN reviewed 500 felony drug arrests made between late June of 2014 when the surge began and late September of 2016 in Starr and Hidalgo counties – where DPS border operations are at their highest.

Many of the felony drug arrests reviewed have yet to result in criminal cases being filed. But in those that have, records show 25 percent of the offenders have been sentenced to probation with no jail time.

High-threat criminals

For example, Rolando Garcia of Roma has been granted probation twice since the surge began. He was arrested in Starr County for possession of 50 to 2,000 pounds of marijuana in September 2014. The charge is a second degree felony that carries a punishment range of 2 to 20 years in prison.

Rolando Garcia

Court records show he pleaded guilty and received five years of probation. A year later in September 2015, records show a game warden had stopped Garcia while pulling a small fishing boat and trailer. When state troopers stopped to assist, they discovered 240 pounds of marijuana hidden in the boat. Garcia was charged with possession of 50 to 2,000 pounds of marijuana. But even though it was the second time Garcia had been charged with the same second degree felony, the second case was dismissed, and his probation in the first case was simply extended for two years.

Then there’s Mary Louise Garcia of San Juan, who was stopped by a state trooper for speeding in Hidalgo County in July 2014. According to the offense report, the trooper observed many square bundles wrapped in brown tape, which turned out to be 638 pounds of marijuana in the back of her car. Garcia pleaded guilty and was sentenced to ten years of probation.

Hidalgo County District Attorney Ricardo Rodriguez said his office considers each case individually and first determines whether someone is a dealer or a user and if they are worthy of getting help under community supervision.

“We look at every case differently,” Rodriguez said. “We look at all the facts and evidence that we have. Those cases that we feel that should be given prison time, we give them prison time. Or if we feel that it's a case where they can be given some kind of community supervision, heavily imposed conditions on them, where they can go back into society and function and not pick up any other offenses again, we take that into consideration,” Rodriguez explained.

Rodriguez also said if prosecutors know someone is actually working for the cartels, they treat the case much differently than they would if it is someone simply getting paid to carry a load of marijuana from one place to another.

When asked about our analysis regarding arrest outcomes, DPS replied in a statement: “In terms of your observations about court cases, the prosecution and final disposition of cases is not decided by law enforcement.”

And one of the biggest border security proponents at the State Capitol, Lt. Gov. Dan Patrick, R-Texas, says that responsibility is not up to politicians, either.

"As lieutenant governor, I don't make the decisions to the grand jury or prosecutors," Patrick said. "I want people who commit crimes to go to jail on the appropriate time based on the crime."

Breaking down the sentences

In about 13 percent of the cases we reviewed, the defendants were sentenced to some jail time along with probation. Twenty percent were sentenced to jail time or given credit for jail time served prior to conviction. And another 20 percent received prison sentences, all in Hidalgo County.

“When it merits, we'll send them off to prison,” said Rodriguez. “And those that we feel can go back into society and function again and not be a threat to society, then we'll offer them an opportunity to not go to prison.”

KXAN discovered some of the cases we reviewed were dismissed because the defendants pleaded guilty in other criminal cases. But others were dismissed “in the interest of justice” or due to “lack of probable cause” to search the defendant and/or their vehicle.

Take Oscar Lopez, who was stopped by a DPS trooper in March 2015 in Starr County, because the trooper said he was driving too close to on-coming traffic. The dash-camera video shows the trooper searching his car while a second trooper searched through Lopez’ pockets. The second trooper found a small baggie with what he said appeared to be a small amount of cocaine in it. He handcuffed Lopez and placed him under arrest for felony drug possession.

Oscar Lopez

In the dash camera audio during Lopez’ arrest, troopers can be heard laughing about the small amount of the drug.

“Dude, I can’t even see it there,” one trooper said. “It probably won’t even weigh.”

The other responded that Lopez “probably won’t even go to jail for it.”

Prosecutors filed a motion to dismiss the case due to “lack of probable cause to search” Lopez. A judge signed the motion and Lopez was released.

Some of the cases reviewed were also dismissed because the defendant completed a “pre-trial diversion program” which allows them to avoid prosecution after going through a period of supervision and receiving services such as counseling. Pre-trial diversion is not usually provided as an option for offenders with prior 1st or 2nd degree felonies.

As of mid-October about 23 percent of the cases reviewed were still pending in court.

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